The Bipartisan Infrastructure Law, also known as the Infrastructure Investment and Jobs Act (IIJA) was signed into law November 15, 2021, and represents a significant investment in U.S. infrastructure. The law aims to rebuild roads, bridges, and rails, expand access to clean water and high-speed internet, address the climate crisis, and promote environmental justice. By incorporating Build America, Buy America (BABA) provisions, the law requires the use of Made in America content, stimulating private sector investments in domestic manufacturing and supporting the creation of union jobs.

The focus is on maximizing the use of American iron, steel, manufactured goods, and construction materials.  Importantly, Build America, Buy America applies to federal financial assistance programs for infrastructure, presenting an unprecedented opportunity to support construction and manufacturing jobs.

Helpful articles and videos on BABA:

Key Provisions in BABA Act Guidance

From MadeinAmerica.gov Explaining Build America, Buy America

Buy America Overview from US Department of Transportation Office of Infrastructure

Final Buy America Act Guidance

Buy America Requirements for Infrastructure

Build America, Buy America Overview from Delaware DOT | Video

DOT’s Identification of Federal Financial Assistance Infrastructure Programs

FTA Buy America Overview

FTA Buy America Fact Sheet

FTA Buy America Requirement Webinar | Video

Buy America Update: Construction Materials Waiver for Certain Contracts & Solicitations | Video

The Changing Landscape of Domestic Preferences for Federal Infrastructure Projects Under BABA

Becoming Buy America compliant involves adhering to certain regulations and standards to ensure that products are made in the United States. Here are some recommendations for manufacturers looking to achieve Buy America compliance:

• Understand Buy America Requirements:
  • Familiarize yourself with the specific requirements outlined in the Buy America Act and other relevant regulations. This includes understanding the threshold for domestic content and the definition of “domestic end product.”
• Source Domestic Materials:
  • Make efforts to source materials and components from domestic suppliers. Ensure that a significant portion of the product is made using materials produced in the United States.
• Document and Certify Origin:
  • Keep detailed records of the origin of each component and material used in the manufacturing process. Proper documentation is crucial for demonstrating compliance. Be prepared to provide certifications as required.
• Establish a Compliance Program:
  • Implement a comprehensive compliance program within your manufacturing processes. This may involve training staff, conducting regular audits, and establishing internal controls to ensure ongoing compliance.
• Engage with Suppliers:
  • Communicate with your suppliers to ensure they understand the importance of Buy America compliance. Obtain certifications and assurances from them regarding the origin of the materials and components they provide.
• Stay Informed on Updates:
  • Stay up-to-date on any changes or updates to Buy America regulations. Regulatory requirements may evolve, and it’s essential to adapt your practices accordingly.
• Collaborate with Government Agencies:
  • Establish communication channels with relevant government agencies responsible for enforcing Buy America provisions. Seek guidance and clarification if needed.
• Seek Legal Counsel:
  • Consider consulting with legal experts or compliance professionals who specialize in government procurement and Buy America regulations. They can provide valuable insights and assistance in navigating the complexities of compliance.
• Participate in Training Programs:
  • Attend training programs or workshops that focus on Buy America compliance. This can help enhance the knowledge and skills of your team in ensuring adherence to the regulations.
• Review Contracts Carefully:
  • When bidding on government contracts, carefully review the contract documents to understand specific Buy America requirements for that particular project. Ensure that your bid aligns with these requirements.

It’s important to note that Buy America compliance can vary depending on the specific project and agency involved. Manufacturers should tailor their approach to meet the unique requirements of each situation.

Using Amerified as a resource can thoroughly streamline the process and help your products get placed into infrastructure projects.  Architects, engineers and contractors trust that manufacturers connected with Amerfied have made substantial efforts to become BABA compliant, which allows for a more frictionless buying process.

The term “Buy America” does not refer to a single statute; instead, it encompasses various statutes that mandate recipients of federal assistance to prioritize goods, products, and materials originating in the United States. An instance of this requirement is found in the grant-making authority of the Federal Transit Administration, stipulating that steel, iron, and manufactured goods used in projects must be domestically produced. The primary legislation reinforcing the preference for domestic goods in federal procurement is the Buy American Act (BAA). The BAA, along with its implementing regulations in the Federal Acquisition Regulation (FAR), establishes a two-part test to determine the eligibility of a product as a domestic end product. This involves the item’s manufacture in the United States and the stipulation that over 60 percent of the cost of all component parts must be U.S.-manufactured. The FAR also outlines various waivers and exceptions to the BAA. In contrast, Buy America laws specifically apply to federal financial assistance, such as grants, rather than procurement activities.

Helpful articles and videos on the difference between Buy America and Buy American:

Difference Between Buy America and Buy American

Buy America vs Buy American: A Simple Guide to Successfully Navigating the Difference

Buy American Overview Video

The waiver process for Buy America provisions allows for exemptions under certain circumstances, permitting the use of foreign-made products in federally funded projects. While the specific details of the waiver process may vary depending on the implementing agency and the context of the project, there are general principles that often apply:

• Agency Authority: Federal agencies have the authority to grant waivers from Buy America requirements. The decision to grant a waiver is typically based on the agency’s assessment of the project’s unique circumstances and the availability of domestic products.
• Conditions for Waivers: Waivers are not automatically granted, and there are specific conditions that may justify an exemption. Common conditions for waivers may include instances where the use of domestic products is not feasible or would significantly increase project costs.
• Demonstrating Infeasibility: Applicants seeking a waiver must demonstrate that it is not feasible to use domestic products for the particular project. This could be due to factors such as insufficient domestic supply, technical specifications that only foreign products meet, or other practical constraints.
• Public Interest Consideration: Agencies may consider the public interest when evaluating waiver requests. If using domestic products would result in substantial negative consequences, a waiver might be granted to ensure that the project can proceed efficiently.
• Limited Duration and Scope: Waivers are often granted for specific items or periods of time. This allows agencies, recipients, and the market to adjust, build capacity, and respond to changing conditions. It ensures that waivers are not a long-term alternative to increasing domestic production.
• Transparency and Reporting: Agencies are typically required to be transparent about waiver decisions. This includes documenting the rationale for granting a waiver and reporting such decisions to the public. Transparency helps ensure accountability and understanding of the waiver process.

It’s important to note that the specific procedures and criteria for waivers may vary between different agencies and programs. The waiver process is designed to balance the goals of promoting domestic manufacturing with the practical realities of certain projects. For the most accurate and up-to-date information, it’s recommended to consult the relevant agency’s guidelines or regulations pertaining to Buy America requirements.

Some helpful articles discussing the waiver process for Buy America:

Waiver of Buy America Requirement for de Minimis Costs and Small Grants  

DOT: Temporary Waiver of Buy America Requirements for Construction Materials